Gutierrez-Abrego v. Wilkinson

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 29, 2021
• Docket: 19-60494
• Status: Unpublished

Opinion

Case: 19-60494 Document: 00515726250 Page: 1 Date Filed: 01/29/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED No. 19-60494 January 29, 2021 Summary Calendar Lyle W. Cayce Clerk

Sonia Leonor Gutierrez-Abrego,

Petitioner,

versus

Robert M. Wilkinson, Acting U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A078 967 905

Before Jones, Barksdale, and Stewart, Circuit Judges. Per Curiam:* Sonia Leonor Gutierrez-Abrego, a native and citizen of Honduras who entered the United States unlawfully in April 2002, petitions for review of an order of the Board of Immigration Appeals (BIA) denying her motion for reconsideration from dismissal of her appeal of an immigration judge’s 7

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60494 Document: 00515726250 Page: 2 Date Filed: 01/29/2021

19-60494

February 2018 denial of her motion to reopen removal proceedings, which resulted in a 3 February 2003 in absentia order of removal. Our court reviews the BIA’s denial of a motion to reconsider with an understandably “highly deferential abuse of discretion standard”. Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016). Accordingly, the BIA’s decision is upheld unless it is capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary. Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). For the following reasons, there was no abuse of discretion. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Gutierrez claims service in May 2002 of her notice to appear did not end her continuous physical presence in the United States because the notice did not specify the date and time of her initial removal hearing. She contends Pereira did not hold a later-issued notice of hearing may perfect the notice to appear and end an alien’s period of continuous presence. Further, Gutierrez asserts the BIA, which relied on its decision in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019), wrongly denied her motion for remand by finding she was ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). After Pereira and consistent with Mendoza-Hernandez, our court held a notice to appear is perfected, and a period of continuous physical presence ends, when an alien receives all statutorily required information, even if the information is provided in more than one document. Yanez-Pena v. Barr, 952 F.3d 239, 245–46 (5th Cir. 2020), petition for cert. filed (U.S. 10 Apr. 2020) (No. 19-1208); see also Pierre-Paul v. Barr, 930 F.3d 684, 689–90 (5th Cir. 2019), cert. denied, 140 S. Ct. 2718 (2020). Gutierrez, therefore, was not eligible for cancellation of removal. Her notice to appear was perfected, and her period of continuous physical presence ended, when the immigration court mailed her a hearing notice containing the required information. See

2 Case: 19-60494 Document: 00515726250 Page: 3 Date Filed: 01/29/2021

Yanez-Pena, 952 F.3d at 241, 245–46. The service of that notice was done within ten years of her entry into the United States. See § 1229b(b)(1). DENIED.